NCAI

September 2, 1999

The NAGPRA Review Committee
c/o Departmental Consulting Archeologist
National Park Service (2275)
1849 C Street, NW (NC340)
Washington, DC 20240

Dear Committee Chair:

On behalf of the National Congress of American Indians (NCAI), the oldest, largest, and most representative American Indian and Alaska Native organization in the United States, I am writing to submit the following comments on the "Draft Principles of Agreement Regarding the Disposition of Culturally Unidentifiable Human Remains". While we are pleased that the Review Committee has begun to address its obligation to develop regulations for the disposition of unclaimed remains, objects, and culturally unidentified human remains in Federal agency and museum collections, NCAI has a few comments and concerns regarding the current "Draft Principles" as outlined in the following section-by-section analysis:

A. Intent of NAGPRA

NCAI understands that Section 8 (c)(5) of NAGPRA requires the Review Committee to recommend specific actions for developing a process for the disposition of culturally unidentifiable Native American human remains. However, we believe that some have interpreted this to mean that Federal agencies and museums are legally restricted from repatriating "culturally unidentifiable" Native American human remains. We ask that this be clarified by the Review Committee.

B. Culturally Unidentifiable Human Remains

Although Section B (1) of the Draft Principles does mention that the determination of cultural affiliation "must be made through a good faith evaluation of all relevant, available documentation and consultation with any appropriate Indian tribe", NCAI believes that pursuant to Section 7 (a) (4) of the Act, Section B (1) must be strengthened to more accurately reflect the role of tribes in determining cultural affiliation. Section 7 (a) (4) of the Act states that,

"Where cultural affiliation of Native American human remains and funerary objects has not been established in an inventory...., such Native American human remains and funerary objects shall be expeditiously returned where the requesting Indian tribe or Native Hawaiian organization can show cultural affiliation by a preponderance of the evidence based upon geopraphical, kinship, biological, archaeological, anthropological, linguistic, folkloric, oral traditional, historical, or other relevant information or expert opinion."

We ask that Section B (1) include language which underscores the role of tribes in determining cultural affiliation and not just the fact that this determination can be done in consultation with any appropriate Indian tribe.

C. Guidelines for the Disposition of Culturally Unidentifiable Human Remains

NCAI is concerned with the use of the term "educational, historical or scientific value" found in both Section C (2) and C (3). While we understand the use of this term in Section A (5) with regard to the observation of "a fundamental tension within the statute", we believe that its use within the guidelines reaches beyond the scope of the law. For example, Section C (2) (b) states, "Human remains for which there is little or no information should be speedily repatriated since they have little educational, historical or scientific value."

Also, Section C (3) (b) states,

"Documentation should be proportional to the importance of the information conveyed. For example, remains from a defined past population for which no present-day Indian tribe exist...are of far greater educational, historical and scientific importance than those for which there is little or no information..."

NCAI is concerned that this language pushes the boundaries set forth within the law with regard to scientific study. Under Section 7 (b) of the Act it clearly states, "If the lineal descendent, Indian tribe, or Native Hawaiian organization requests the return of culturally affiliated Native American cultural items, the Federal agency or museum shall expeditiously return such items unless such items are indispensable for completion of a specific scientific study, the outcome of which would be of major benefit to the United States."

NCAI acknowledges that documentation is necessary in determining cultural affiliation, but human remains should be speedily repatriated in any case, regardless of the educational, historical or scientific value. The issue at hand is the determination of cultural affiliation and repatriation, not the educational, historical, or scientific importance or value. Such language clearly reaches beyond the scope of NAGPRA and should be removed.

D. Models for the Disposition of Culturally Unidentifiable Human Remains

NCAI applauds the Review Committee's recommendation of regional solutions for disposition/repatriation; however, NCAI would like the Review Committee to clarify the term "disposition". Also, we believe that tribes should have greater leverage with regard to regional solutions. Where the remains are clearly Native American, the process for their "disposition" should be determined from a native perspective. Although Federal agencies and institutions can be helpful in determining the closest cultural affiliation of human remains and cultural items, tribes should be in control of establishing solutions. Regional disposition solutions should be drafted by the tribes in that region with some consultation with Federal agencies and institutions and not by Federal agencies and institutions as if they had an equal say in the matter. Just as numerous policies of federal agencies and institutions are drafted by those entities in "consultation" with tribes, these solutions should be drafted by tribes in "consultation" with Federal agencies and institutions. These are issues which should be addressed by the tribes and are clearly within the scope of NAGPRA.

Thank you for your consideration of our comments and concerns and your efforts to work with tribal governments. If you have any questions please do not hesitate to contact me or JoAnn K. Chase, NCAI Executive Director at (202) 466-7767.

Sincerely,

W. Ron Allen

President